J. S11009/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

SAMUEL GLADDEN, : No. 1572 EDA 2015

:

 Appellant :

Appeal from the PCRA Order, May 14, 2015,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0430781-1992

BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 16, 2016

Samuel Gladden appeals, pro se, from the May 14, 2015 order 

denying his third petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, following his convictions of 

second-degree murder and possession of an instrument of crime.1 We 

reverse and remand for resentencing.

On May 18, 1993, a jury convicted appellant, who was 16 years old at 

the time of the offense, of second-degree murder and possession of an 

instrument of crime. On March 16, 1994, the trial court sentenced appellant 

to a mandatory sentence of life imprisonment without the possibility of 

parole. This court affirmed the judgment of sentence on September 26, 

 

1 18 Pa.C.S.A. §§ 2502(b) and 907, respectively.
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1995. See Commonwealth v. Gladden, 665 A.2d 1201 (Pa.Super. 1995) 

(en banc). The Supreme Court of Pennsylvania denied appellant’s petition 

for allowance of appeal on April 24, 1996. See Commonwealth v. 

Gladden, 675 A.2d 1243 (Pa. 1996).

On March 20, 1997, appellant filed his first petition pursuant to the 

PCRA. The trial court dismissed appellant’s petition on December 15, 1997. 

Appellant filed a second PCRA petition on May 1, 2000, which the trial court 

dismissed as untimely on September 20, 2000. Appellant appealed the trial 

court’s dismissal, which we affirmed on May 18, 2001. See 

Commonwealth v. Gladden, No. 2923 EDA 2000, unpublished 

memorandum (Pa.Super. filed May 18, 2001). The Supreme Court of 

Pennsylvania denied allowance of appeal on October 1, 2001. See 

Commonwealth v. Gladden, 788 A.2d 373 (Pa. 2001). 

Appellant filed his third PCRA petition, which is at issue in the instant 

case, on July 2, 2010. On July 30, 2012, appellant filed an amended PCRA 

petition in response to the Supreme Court of the United States’ decision in 

Miller v. Alabama, 132 S.Ct. 2455 (2012). On December 17, 2013, 

appellant motioned for leave to supplement his petition for habeas corpus

relief and filed an amended PCRA petition on that date. On June 24, 2014, 

the trial court notified appellant of its intent to dismiss his PCRA petition as 

untimely, pursuant to Pa.R.Crim.P. 907. The trial court dismissed 
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appellant’s PCRA petition on May 14, 2015. Appellant filed a notice of appeal 

on May 26, 2015.

Appellant raises the following issues for our review:

I. Should review be granted to determine if the 

Court of Common Pleas deprived appellant his 

due process and equal protection rights when 

failing to accept appellant’s writ of habeas 

corpus and a PCRA petition, violating the 

United States Constitution 8 and 14 

Amendment [sic]; Pennsylvania Constitution, 

Article I, Section 13; United Nations 

Convention on the Rights of the Child Article 

37[?]

II. Should review be granted to determie [sic] if 

the Commonwealth Court of Common Pleas 

erred by allowing an unconstitutional sentence 

to stand which [is] a violation of Pennsylvania 

Constitution, Article I, Section 1, 9, 11, 13, 14, 

and the 25 [sic], also the United States 

Constitution, 8th and 14th Amendment [sic][?]

Appellant’s brief at 3.

The trial court acknowledged that appellant,

did not waive his Miller claim because he raised it 

within sixty days of the date that Miller was 

decided[. However, appellant] still had the burden 

of establishing that [the trial court] had jurisdiction 

to address his claim. See Commonwealth v. 

Seskey, 86 A.3d 237, 241 (Pa.Super. 2014). 

[Appellant] did not meet his burden because the 

Pennsylvania Supreme Court ruled that Miller did 

not create a new constitutional right that applies 

retroactively. Commonwealth v. Cunningham, 81 

A.3d 1 (Pa. 2013), cert. denied, 134 S.Ct. 2724 

(2014).

Trial court opinion, 5/14/15 at 2.
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Indeed, at the time of the trial court’s order and opinion dismissing 

appellant’s PCRA petition, Cunningham controlled all Miller claims filed 

pursuant to the PCRA, and our supreme court found that Miller protections 

did not apply retroactively in Pennsylvania.2 Cunningham, 81 A.3d at 11. 

While this appeal was pending in this court, however, the Supreme Court of 

the United States announced its decision in Montgomery v. Louisiana, 136 

S.Ct. 718 (2016). The Montgomery Court held that its decision in Miller

“announced a substantive rule of constitutional law.” Id. at 734. 

Specifically, the Court stated that, “Miller’s conclusion that the sentence of 

life without parole is disproportionate for the vast majority of juvenile 

offenders raises a grave risk that many are being held in violation of the 

Constitution.” Id. at 736.

In order to prevent such harm, the Court found that substantive rules, 

much like the rule announced in Miller, must be retroactive, “because 

[they] ‘“necessarily carr[y] a significant risk that a defendant”’--here, the 

vast majority of juvenile offenders--‘“faces a punishment that the law cannot 

impose upon him.’” Id. at 734, quoting Schriro v. Summerlin, 542 U.S. 

348, 352 (2004) (citations omitted). Therefore, Cunningham’s tenet that 

Miller cannot be applied retroactively is no longer good law in Pennsylvania.

 

2

In Miller, the Supreme Court of the United States held that mandatory 

sentences of life imprisonment without the possibility of parole for juvenile 

offenders violated the Eighth Amendment. Miller, 132 S.Ct. at 2469.
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A recent panel of this court analyzed the further implications of 

Montgomery on Pennsylvania case law.

We now turn our attention to the implications arising 

from [Commonwealth v. Abdul-Salaam, 812 A.2d 

497, 502 (Pa.2002)], (holding: “[T]he language ‘has 

been held’ in 42 Pa.C.S. § 9545(b)(1)(iii) means that 

a retroactivity determination must exist at the 

time that the petition is filed”) (emphasis added).

The instant case represents an example of the 

unique situation implicating those PCRA petitions 

seeking Miller relief which were filed in the time gap 

following Miller but before Montgomery. . . . 

When Appellant filed his petition, the various 

jurisdictions were still trying to decide if Miller was 

available on collateral review but were doing so 

without the benefit of Montgomery. Appellant's 

petition was ultimately decided under Cunningham, 

supra and denied. We recognize that similar “gap” 

cases are in the appellate system awaiting 

disposition . . . .

Therefore, we now hold that the best 

resolution of this dilemma is to interpret 

Montgomery as making retroactivity under Miller

effective as of the date of the Miller decision. In 

this way, we satisfy the “has been held” conditional 

language enunciated in Abdul–Salaam, supra.

Commonwealth v. Secreti, 2016 WL 513341 (Pa.Super. 2016) at *5-6 

(citations reformatted).

As a result, appellant has proven by a preponderance of the evidence 

that the right he is asserting is a constitutional right recognized, in this case, 

by the Supreme Court of the United States to apply retroactively. The trial 

court sentenced appellant, who was 16 years old at the time of the offense, 

to a mandatory sentence of life imprisonment without the possibility of 
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parole. In light of the Supreme Court’s recognition in Miller that such a 

sentence violates the Eighth Amendment’s prohibition against cruel and 

unusual punishment, and the Court’s recent retroactive application of Miller

in Montgomery, we reverse the trial court’s order and remand for 

re-sentencing.

Order reversed; case remanded for resentencing. Appellant’s motion 

for extraordinary relief is denied for mootness. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2016